U.S. Supreme Court expands state power over Native American tribes

Authored by reuters.com and submitted by 8-bit-Felix
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The U.S. Supreme Court building is pictured in Washington, U.S. March 15, 2022. REUTERS/Emily Elconin

WASHINGTON, June 29 (Reuters) - The U.S. Supreme Court on Wednesday dramatically increased the power of states over Native American tribes and undercut its own 2020 ruling that had expanded tribal authority in Oklahoma, handing a victory to Republican officials in that state.

In a 5-4 decision authored by conservative Justice Brett Kavanaugh, the court ruled in favor of Oklahoma in its bid to prosecute Victor Castro-Huerta, a non-Native American convicted of child neglect in a crime committed against a Native American child - his 5-year-old stepdaughter - on the Cherokee Nation reservation.

Until now, states generally lacked jurisdiction over such crimes, which were prosecuted by the federal government.

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The change of course only two years after the July 2020 ruling in a case called McGirt v. Oklahoma was made possible by conservative Justice Amy Coney Barrett's October 2020 appointment by Republican former President Donald Trump to replace the late liberal Justice Ruth Bader Ginsburg, who had been in the majority in that decision.

Conservative Justice Neil Gorsuch, as he did in 2020, joined the court's liberal bloc on Wednesday in favor of Native American interests, but its expanded conservative majority meant that this time he was in the minority.

"To be clear, the court today holds that Indian country within a state's territory is part of a state, not separate from a state," Kavanaugh wrote in a decision that scholars of Native American law said was a major departure from longstanding precedent.

Kavanaugh added that "under the Constitution and this court's precedents, the default is that states may exercise criminal jurisdiction within their territory."

In the McGirt decision, the court recognized about half of Oklahoma - much of the eastern part of the state - as Native American reservation land beyond the jurisdiction of state authorities. That ruling, criticized by Governor Kevin Stitt and other Republicans, meant that many crimes on the land in question involving Native Americans would need to be prosecuted in tribal or federal courts.

Castro-Huerta's lawyer, Zachary Schauf, said the ruling was "devastating" for his client and others affected but glad the court had not overruled the McGirt decision.

"We look forward to continuing the fight for tribal sovereignty, in Oklahoma and nationwide," Schauf added.

Wednesday's ruling affects Oklahoma and could be extended to other states. About 20 states where tribal reservations are located could seek new authority to exert criminal jurisdiction over crimes committed by non-Native Americans against native Americans on Native American land.

That includes western states with large Native American populations including Arizona and New Mexico.

Arizona State University law school professor Stacy Leeds, an expert on Native American legal issues, said the ruling upended "the entire field of federal Indian law" that was based on the assumption that Congress decided the extent of state power over tribes.

"It seems to invite the state in - not by action of the federal government or consent of the tribe. Somehow the states have now magically acquired inherent state jurisdiction," Leeds added.

Writing in dissent, Gorsuch called Wednesday's ruling a "grim result for different tribes in different states," but said its impact could still be limited by individual treaties and laws passed by Congress.

"One can only hope the political branches and future courts will do their duty to honor this nation's promises even as we have failed today to do our own," Gorsuch added.

Thirty-five states are home to federally recognized tribes, according to the National Congress of American Indians. Before the Supreme Court ruling, 16 had already been given authority by Congress to assert jurisdiction over at least some tribal land for crimes involving Native Americans.

Oklahoma Attorney General John O'Connor, a Republican, said that as a result of the McGirt ruling many crimes were not being prosecuted by federal authorities.

"Now the state prosecutors can take up the slack and get back to what we have been doing for 113 years," O'Connor added.

The state already prosecutes crimes committed in the affected land in which no Native Americans are involved. Tribal courts handle crimes committed by and against Native Americans.

Chuck Hoskin, principal chief of Cherokee Nation, said that the justices had ignored court precedent and "basic principles" of law.

Tribes had welcomed the McGirt ruling as a recognition of their sovereignty. The Supreme Court in January rejected Oklahoma's request to outright overturn it. read more

Castro-Huerta was convicted in state court of neglecting his stepdaughter, who has cerebral palsy and is legally blind, and sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals last year threw out that conviction because of the 2020 precedent. Castro-Huerta by then was already indicted for the same underlying offense by federal authorities, transferred to federal custody and pleaded guilty to child neglect. He has not yet been sentenced.

Reporting by Lawrence Hurley; Editing by Will Dunham

Our Standards: The Thomson Reuters Trust Principles.

defiancy on June 29th, 2022 at 18:00 UTC »

What is even the point of the SC ruling on a case if it's just going to undo that ruling two years later?

john_andrew_smith101 on June 29th, 2022 at 17:44 UTC »

So state law applies to reservations now? Does this mean that every Indian casino needs to shut down?

vpi6 on June 29th, 2022 at 17:33 UTC »

"One can only hope the political branches and future courts will do their duty to honor this nation's promises even as we have failed today to do our own," Gorsuch added.

Seems Gorsuch doesn't like it when his precedent is overturned after only two years. What a joke.

EDIT: the opener of his dissent. He is not a happy camper and spitting fire to how much bullshit the decision is.

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force—an attempt by the State to demonstrate its authority over tribal lands. Speaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign. See Worcester v. Georgia, 6 Pet. 515, 561 (1832). The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it. But in time, Worcester came to be recognized as one of this Court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823). Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.

EDIT2: Even more reasons why the ruling is bullshit

To succeed, Oklahoma must disavow adverse rulings from its own courts; disregard its 1991 recognition that it lacks legal authority to try cases of this sort; and ignore fundamental principles of tribal sovereignty, a treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280. Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries not a single State has successfully attempted it in this Court.

EDIT3:

Against all this evidence, what is the Court’s reply? It acknowledges that, at the Nation’s founding, tribal sovereignty precluded States from prosecuting crimes on tribal lands by or against tribal members without congressional authorization. See ante, at 5. But the Court suggests this traditional “‘notion’” flipped 180 degrees sometime in “the latter half of the 1800s.” Ante, at 5, 21. Since then, the Court says, Oklahoma has enjoyed the “inherent” power to try at least crimes by non-Indians against tribal members on tribal reservations until and unless Congress preempts state authority.

But exactly when and how did this change happen? The Court never explains. Instead, the Court seeks to cast blame for its ruling on a grab bag of decisions issued by our predecessors. But the failure of that effort is transparent. Start with McBratney, which the Court describes as our “leading case in the criminal context.” Ante, at 6. There, as we have seen, the Court said that States admitted to the Union may gain the right to prosecute cases involving only non-Indians on tribal lands, but they do not gain any inherent right to punish “crimes committed by or against Indians” on tribal lands. McBratney, 104 U. S., at 624. The Court’s reliance on Draper fares no better, for that case issued a similar disclaimer. See 164 U. S., at 247. Tellingly, not even Oklahoma thinks McBratney and Draper compel a ruling in its favor. And if anything, the Court’s invocation of Donnelly, 228 U. S. 243, is more baffling still. Ante, at 14, n. 3. There, the Court once more reaffirmed the rule that “offenses committed by or against Indians” on tribal lands remain subject to federal, not state, jurisdiction. Donnelly, 228 U. S., at 271; see also Ramsey, 271 U. S., at 469. That leaves the Court to assemble a string of carefully curated snippets—a clause here, a sentence there—from six decisions out of the galaxy of this Court’s Indian law jurisprudence.

In the end, the Court cannot fault our predecessors for today’s decision. The blame belongs only with this Court here and now. Standing before us is a mountain of statutes and precedents making plain that Oklahoma possesses no authority to prosecute crimes against tribal members on tribal reservations until it amends its laws and wins tribal consent. This Court may choose to ignore Congress’s statutes and the Nation’s treaties, but it has no power to negate them. The Court may choose to disregard our precedents, but it does not purport to overrule a single one. As a result, today’s decision surely marks an embarrassing new entry into the anticanon of Indian law. But its mistakes need not—and should not—be repeated.

EDIT4: Gorsuch pretty much says the other 5 are legislating from the bench.

In reweighing competing state and tribal interests for itself, the Court stresses two points. First, the Court suggests that its balance is designed to “help” Native Americans. Ante, at 20 (suggesting that Indians would be “second-class citizens” without this Court’s intervention); Tr. of Oral Arg. 66 (suggesting state jurisdiction is designed to “help” tribal members)

Start with the assertion that allowing state prosecutions in cases like ours will “help” Indians. The old paternalist overtones are hard to ignore. Yes, under the laws Congress has ordained Oklahoma may acquire jurisdiction over crimes by or against tribal members only with tribal consent. But to date, the Cherokee have misguidedly shown no interest in state jursidiction. Thanks to their misjudgment, they have rendered themselves “second-class citizens.” Ante, at 20. So, the argument goes, five unelected judges in Washington must now make the “right” choice for the Tribe. To state the Court’s staggering argument should be enough to refute it.

Moving forward, the Court cheerily promises, more prosecuting authorities can only “help.” Three sets of prosecutors— federal, tribal, and state—are sure to prove better than two. But again it’s not hard to imagine reasons why the Cherokee might see things differently. If more sets of prosecutors are always better, why not allow Texas to enforce its laws in California? Few sovereigns or their citizens would see that as an improvement. Yet it seems the Court cannot grasp why the Tribe may not.

This Court has no business usurping congressional decisions about the appropriate balance between federal, tribal, and state interests. If the Court’s ruling today sounds like a legislative committee report touting the benefits of some newly proposed bill, that’s because it is exactly that. And given that a nine- member court is a poor substitute for the people’s elected representatives, it is no surprise that the Court’s cost- benefit analysis is radically incomplete. The Court’s decision is not a judicial interpretation of the law’s meaning; it is the pastiche of a legislative process.

Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.

This is peak r/leopardsatemyface material. What did he think would happen when he endorses overturning precedent.